Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Investigations – Accountants – Disciplinary proceedings – Competence – Judicial review – Stay of proceedings – Limitations – Procedural requirements and fairness – Natural justice – Delay – Jurisdiction to hear a complaint – Judicial review application – Striking out – Premature
Kawula v. Institute of Chartered Accountants of Saskatchewan,  S.J. No. 9, 2010 SKQB 11, Saskatchewan Court of Queen’s Bench, January 13, 2010, M.D. Acton J.
The Respondent Institute (the “Institute”) received a complaint relating to financial statements and referring to Kawula and Kawula Chartered Accountants. The Institute received the complaint in October 2004. One of the principals of Kawula and Kawula Chartered Accountants (Frank Kawula) received correspondence about the complaint for several months. Eventually, in or about the middle of 2005, the Applicant (Audry Kawula) advised the Institute that she was the one responsible for the work at issue. The Institute conducted an investigation into the complaint and, in late 2006, the Applicant provided a detailed written response to the investigators.
In December 2008, the Institute’s Professional Conduct Committee (“PCC”) issued a notice of hearing in respect of the complaint. The Applicant soon requested an adjournment and, at the time of the new hearing date in May 2009, raised several preliminary issues. The hearing was adjourned again and, at the time of a subsequent hearing date, the hearing was adjourned so that the Applicant could bring this application in court.
The within application was brought by the Applicant for an Order that the Institute’s Discipline Committee is prohibited from proceeding with a discipline hearing against her because the delay makes this matter statute-barred, it contravenes the Charter, and it offends the rules of procedural fairness and natural justice. The Institute took the position that the Applicant’s application was premature since the Discipline Committee had not done more than hear the preliminary issues raised by the Applicant.
The Court noted that the onus was on the Applicant to justify a stay of proceedings and the Court concluded that the application was premature. It was not yet possible for the Court to determine whether the Applicant would be able to obtain a fair hearing, nor was it possible for the Court to determine whether there was any prejudice to the Applicant because of the delay. If the Applicant were treated unfairly by the Discipline Committee, this could still be dealt with by the Discipline Committee or by way of an appeal to the Court (with the benefit of a full record of the proceedings).
Since there was a right of appeal, and there were no special circumstances that justified the Court accepting jurisdiction, the Court declined jurisdiction. The application was dismissed.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.
To stay current with the new case law and emerging legal issues in this area, subscribe here.